Monthly Archives: February 2010

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Cooney & Conway, for a spot advertising their mesothelioma claims practice. It features an older woman, who speaks into the camera with a tone of utmost sincerity, her eyes practically welling up with heartfelt gratitude, as she describes the attorneys that helped get her a settlement:

Although I would be curious to see the results of an empirical look at the question, my own experience has been that Fox News is the most horrible of all major media organizations when it comes to a very old, very tired and insidious version of sexism: the concept of male as the default, and female as the “other.”

Whenever I watch Fox, I am constantly cringing at their coverage of every day news events. “In Texas, a woman motorist was involved in a collision…” “At the CDC, a female research scientist working on contagious diseases reports that…” “A conviction for embezzlement was handed down today for a female trust fund manager…”

Sometimes — sometimes — these characterizations are not all that offensive or nerve-grating, particularly where the gender ratio of the descriptive noun being used is very large. For instance, describing someone as a “female suicide bomber” might be appropriate where, in the context of the news blurb, the gender is unusual and there is no other way to convey that information in a brief sentence. And, of course, where the person’s gender is actually relevant to the story, providing that information is acceptable and expected, even when done in the clumsy “female [noun]” structure.

But, generally, Fox News simply attaches “woman” or “female” in every instance that a noun happens to refer to someone with an XX chromosome. Because male is the default; male is the normal, the average, the expected. In Fox News’ world, people are male until indicated otherwise.

In think in particular it is Fox’s constant use of “woman motorist” that drives me the most batty. By definition, easily half of motorists are women, and, equally by definition, “motorist” is completely gender neutral. Just in terms of writing style, it is offensively clumsy and jarring to the ear — why on earth use that descriptor when in the next sentence you’re going to clarify any confusion anyway by referring to her with a pronoun anyway?

Today, while on Fox News’ page to skim another article, I noticed a link to the day’s most popular stories, and it included the following headline:

Report: Female Trainer Killed at SeaWorld’s Shamu Stadium.

The inclusion of “female” in the headline is, on the scale of things, a relatively minor offense. But it is only because habitual gender essentialism and female othering is so pervasive in the media that such a headline can exist. Augh, why? Why is it necessary to ensure that her classification as “female” is specified there? The poor woman’s gender is quickly revealed in the story — so how could it possibly be worth wasting valuable headline real estate on declaring it? And why is “orca whale trainer,” of all things, considered to be a default masculine term? Is there really some sort of cultural precept that considers whale trainers to be a predominantly male category?

I don’t mean to claim that any intentional sexism or even deliberate thought went into crafting that headline; in fact, what I am pointing out is directly the opposite. It is a reflexive and natural-seeming act for the authors to use such phrasings, even if the result is an awkward and wasteful sentence. But it is still sexism, of a kind, and the only way to combat the sort of sexism that is the force of ingrained thinking and not of the slightest malicious will is to acknowledge and call out its existence. Fox News ought to fix its style book; the “woman motorist” and “female trainer” bits do nothing for the quality of its reporting.

I was driving up the GW Parkway this morning, and as I was going around one of the bends near the scenic overlooks, a giant bald eagle swooped right in front of me. (It was roughly the size of a small horse.) It glided over the cliff, heading across the river, and I am probably lucky it did not cause me to wreck. I watched it as far as I could, mostly to make sure I was not imagining it. But nope, definitely a genuine, in-the-feather version of our national bird.

I am pretty sure the only thing more American than a bald eagle fly across the Potomac (on a road named for George Washington, no less) would be eating a Big Mac and an apple pie while watching a reality TV show.

About a quarter mile down the road, I saw a second bird, from farther away, that I think may have been a juvenile bald eagle. The coloring was all wrong for any of the hawks in the area, and the shape did not look like a vulture, so who knows.

A quick Google search showed that there are actually quite a few bald eagles in the area — including 20 nesting pairs along the Potomac — and in 2009 a pair was even nesting in the median on the GW Parkway. There is even a photo gallery dedicated to George Washington Memorial Parkway Bald Eagles. So I guess I should have been less surprised to have seen one this morning and more surprised that I had not seen one before now.

Maybe the first eagle I saw was either Alex or Belle, a pair that seems to have nested in the area last year:

-Susan

[Edit: I am pretty sure I have located the eagles’ nest. If you’re heading southbound on the GW Parkway, just where the entrance ramp for Spout Run comes into the Parkway, their nest is on the left in the median, maybe ten feet down from the top of the trees. It’s pretty hard to miss once you know where to look.]

In the past few days, Russia has purported to enter into several agreements with Abkhazia, an autonomous region in Georgia that had proclaimed its own sovereignty and is now attempting to achieve recognized statehood. These agreements include the establishment of direct air traffic between Russia and Abkhazia (including an obligation on Russia to help repair the airport there) and the formalization of Russian presence in Abkhazia with a 49-year lease on a Russian military base in the region.

According to Georgia, these agreements were “illegally signed by an occupying power and a puppet regime”. NATO has likewise denounced the pacts as illegal. Given that Abkhazia is merely a region of Georgia under international law, the pact with Abkhazia cannot change Russia’s status as an illegal occupier of Georgia – and a violation of Article 2:4 of the UN Charter. (For obvious reasons, this poses a large hurdle on Georgia’s accession to NATO. If Georgia did succeed, the U.S. and other NATO nations could potentially be obligated under international treaty law to go to war with Russia.)

Recognition of independence of regions of Abkhazia and South Ossetia was illegal and their occupation was illegal as well, although they do not call it occupation any more, they take the territory legally, but say it’s not occupation. What do you call it then, is it a military tourism? What are these Russian troops doing then illegally in the other country’s territory? The way Russian propaganda works is very clear – you blame someone of what you are doing or going to do.

Although Russia’s occupation of Abkhazia is plainly illegal, the accusation that the mere recognition of Abkhazia and South Ossetia is a violation of international law is a more intriguing claim. Can the recognition of a state be, in itself, an illegal act?

So far, only four states recognize Abkhazia: Russia, Nicaragua, Venezuela, and, as discussed previously on this blog, Nauru. For two of these states, recognition may have in fact been in violation of international law. Both Venezuela and Nicaragua are signatories to the Montevideo Convention, and under Article 11 of that treaty,

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

So at least in theory then, Venezuela and Nicaragua could be in breach of a treaty obligation, although not CIL. Russia, however, along with all other non-American states, is not party to the Montevideo Convention. How then could its recognition of Abkhazia violation international law? Even had Russia not formally recognized Abkhazia, it would be entitled under international law to treat Abkhazia has a pseudo-sovereign in certain respects. For instance, during the American Civil War, the United Kingdom did not recognize the Confederacy as a sovereign state, but did accord them a “belligerent” status that allowed for Confederate ships to enter into ports on the same terms as ships flagged by recognized states. Even today, many nations will recognize private contracts, such as marriage, that were entered into under the auspices of a non-state, even if for other purposes the non-state is denied to have any independent existence.

The power to recognize other states is a privilege of statehood — not a duty. Had the constitutive theory of statehood had become a controlling principle of international law, there would be a stronger foundation for President Saakashvili’s claims about Russia. Judge Lauterpacht, a proponent of the constitutive theory, even suggested that international law should impose a duty on states to recognize other states.

This idea never took hold, however, and instead, under the declarative theory, states can use whatever criteria they wish when deciding whether or not to extend recognition to a new state, even if it otherwise meets all objective qualifications for statehood. Customary international law is more or less settled today on a declarative approach to statehood that declares a state is a state when it satisfactorily meets certain indicia of sovereignty. A state, therefore, is any entity that possesses “a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.”

But this formulation is more of a definition of what a state should be than any sort of normative command constraining state behavior. Although an argument could be made that a state is in violation of international law when it purports to “recognize” an entity that does not possess these four criteria, I would expect many states to outright reject the validity of this norm — given how subjective evaluations of statehood often are, if 77 states recognize a state and 116 do not, would the 77 now be committing an illegal act? On the close cases, obviously not. But even defining what is and is not a “close case” is a tricky call.

What about a state’s recognition of the statehood of something unambiguously inapplicable? What would it mean for one state to recognize, say, a cruise ship as an independent state? Or how about something truly absurd – how about a toaster? Would this be an “illegal” act, or would it be more akin to a null command, something that is simply not cognizable under international law?

Obviously, there are a lot of actions a state could take as a result of its recognition of another state that would contravene international law. But the act of recognition or non-recognition in itself is harder to characterize as something that can be “illegal.”

Meanwhile, whether or not Russia’s recognition of it was justified, Abkhazia is attempting to obtain further international support for its claims to sovereignty, perhaps recognizing that having Russia as its patron is more likely to result in Abkhazia’s relegation to puppet state status than in true statehood. Currently, Abkhazian delegates are visiting foreign countries throughout South American, attempting to establish diplomatic ties with and, more importantly, receive recognition from nations there:

The agenda of the Abkhazian delegation’s working visit to the region includes the development of economic relations with Latin American countries, he said.
“We are looking for ways to fill our relations not only with political statements, but also with specific economic projects,” the acting foreign minister said.
During the tour of Latin America, the Abkhazian delegation will visit Venezuela, Argentina, Ecuador, and Bolivia.

Up until now, the recognition Abkhazia has received from other states has been either politically or monetarily motivated. By attempting to secure ties with other countries through “economic projects,” Abkhazia hopes to establish international recognition that is not merely nominal but also persuasive proof of its sovereignty. To this end, Abkhazia has made a point of emphasizing that it possesses both a moral right to its statehood as well as a positive claim to statehood under international law:

Abkhazia insists that the question of its recognition “be considered not only in terms of the right to self-determination, but primarily in terms of view of international law,” the acting foreign minister said.
“In both cases Abkhazia has indisputable arguments,” he added.

More and more, I am becoming convinced that Abkhazia and, to a somewhat lesser extent, South Ossetia, are positioning themselves in a manner that will eventually allow them to make legitimate claims to statehood. They are obviously a long ways off, I would not be surprised if, within the next decade, one or the both of them find seats in the General Assembly.

Originally, after one initial rejection and following a re-filing some years later, ICANN had approved ICM’s request for the creation of the .xxx domain. The publicity generated by this decision resulted in a flood of submissions from governments world-wide protesting the decision, ICANN withdrew its previously issued approval. (Because, apparently, the web address of http://www.porn.xxx is less objectionable than http://www.porn.xxx? Go figure.) ICM then filed for review, resulting in the advisory decision that was just issued.

An informative summary of the events running up to the ICDR decision can be found here, but this section pretty much says it all:

Once ICANN voted on June 1, 2005 to approve the application ICANN, could not reverse itself.

All of the discussion, arguments of governments, including that of the US Department of Commerce needed to happen before the vote, not after.

Duh.

And because it’s a good example of the sort of objections states raised in response to the .xxx domain, here is the letter written by the U.S. Department of Commerce to ICANN back in 2005, two months after the initial, later revoked, approval:

I understand that the Board of Directors of (ICANN) is scheduled to consider approval of an agreement with the ICM Registry to operate the .xxx top level domain (TLD) on August 16, 2005. I am writing to urge the Board to ensure that the concerns of all members of the Internet community on this issue have been adequately heard and resolved before the Board takes action on this application.

Since the ICANN Board voted to negotiate a contract with ICM Registry for the .xxx TLD in June 2005, this issue has garnered widespread public attention and concern outside of the ICANN community. The Department of Commerce has received nearly 6000 letters and emails from individuals expressing concern about the impact of pornography on families and children and opposing the creation of a new top level domain devoted to adult content. We also understand that other countries have significant reservations regarding the creation of a .xxx TLD. I believe that ICANN has also received many of these concerned comments. The volume of correspondence opposed to the creation of a .xxx TLD is unprecedented. Given the extent of the negative reaction, I request that the Board will provide a proper process and adequate additional time for these concerns to be voiced and addressed before any additional action takes place on this issue.

Via Language Log, “Sex-change surgery and universal grammar”, a post on a decision of the Tax Court that was released earlier this month. The decision addressed the question of whether medical expenditures undertaken in the course of sex reassignment surgery are deductible under the U.S. Tax Code.

Although simmering beneath the surface of the opinion is a barely restrained argument on sexual morality and gender essentialism (although with plenty of snide jabs and confidential asides on the quality of other judge’s arguments tucked away in the footnotes), the concurrences and dissents treat the debate, at least on its face, as a matter of linguistics. The opinion is, overall, a pretty fascinating one, with many potential points of interest, but I liked the angle Language Log pointed out: the kerfuffle over using rules of grammar and logic in statutory construction, i.e., “the dispute about how to interpret disjunction under negation—i.e., how to interpret expressions such as I don’t know anything about linguistics or tax law (with don’t signaling negation and or signaling disjunction).”

Section 213(d)(1)(A) of the Tax Code “allows a deduction for expenses paid during the taxable year for medical care that are not compensated for by insurance or otherwise and to the extent that such expenses exceed 7.5 percent of adjusted gross income.”

In turn, ‘medical care’ is defined as the amount paid “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body .” However, medical care does not include cosmetic surgery (or any “similar procedure”), which the Code defines as “any procedure which is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or treat illness or disease.”

In O’Donnabhain v. Commission, the IRS was presenting the losing argument that Gender Identity Disorder (GID) was not a ‘disease,’ as it lacks any known organic basis, was rejected, given that mental disorders without an unknown organic cause have been accepted as a disease for IRS purposes for half a century. The IRS also argued that GID was “social phenomenon” that had been “medicalized,” but this characterization was also rejected in light of the medical evidence presented.

The tax court found for the petitioner and that sex reassignment surgery is in fact a deductible expense under the Tax Code. The IRS had also wanted to deny any deduction for the petitioner’s hormone therapy, arguing that hormone therapy, when intended to alter someone’s appearance, is a “similar procedure” that falls under the cosmetic surgery exclusion. (The court did, however, deny the deductions for the petitioner’s breast augmentation surgery — because petitioner had achieved some breast tissue from the hormone therapy alone, the augmentation was in fact cosmetic.)

Language Log describes the linguistic disagreement present in the opinion:

On the majority’s interpretation, the boldfaced language above means that an appearance-improving procedure doesn’t count as cosmetic surgery if it either promotes proper bodily function or prevents or treats illness or disease. The dissenters, on the other hand, argued that for such a procedure to be excluded from the cosmetic-surgery category, it has to both promote proper bodily function and prevent or treat illness or disease.

According to Halpern, “I believe the better view is to presume that Congress is careful in its drafting and drafts in accordance, rather than in conflict, with the rules of grammar and logic,” and therefore, the statute should be interpreted in light of De Morgan’s laws.

In his dissent, Judge Foley responded that “Judge Halpern’s mechanical application of De Morgan’s laws is not prudent. Simply put, congressional intent is not subservient to De Morgan’s laws.” As much as I disagree with the rest of Foley’s opinion, he does have a point here. For more on the validity of Halpern’s reliance on rules of logic to interpret language, read the rest of the post over at Language Log.

There were two further points of minor interest from the O’Donnabhain decision that caught my eye. The first was a citation by the court to Judge Posner, from an opinion of his holding that psychotherapy alone was ineffective:

The cure for the male transsexual consists not of psychiatric treatment designed to make the patient content with his biological sexual identity–-that doesn’t work-–but of estrogen therapy designed to create the secondary sexual characteristics of a woman followed by the surgical removal of the genitals and the construction of a vagina-substitute out of penile tissue.

I was curious to see the use of the informal “doesn’t” in a judicial opinion — I don’t think I have seen Posner take that tone before, but maybe he uses it as he has here, when he wants to come across as frank and authoritative about a potentially sensitive subject. The second comment was in Judge Holmes’ concurrence, which Halpern referred to somewhat dismissively as a “Brandeis brief.” Homes critiqued the majority’s opinion for deciding more than may have been strictly necessary, stating that:

It is not essential to the holding and drafts our Court into culture wars in which tax lawyers have heretofore claimed noncombatant status.

This struck me as an odd statement to make. Given the structure of our tax code and kinds of deductions provided for, it is impossible to administer our tax system is a way that avoids entering the “culture wars.” Moreover, the medical expenses deduction has often been a lightning rod for controversy; this is hardly the first time there has been a dispute on sensitive social and cultural matters related to it. How could it be otherwise? ‘Medical care’ is not in itself inherently scientific, clinical, and objective, as Holmes seems to imagine. The phrase “promote the proper function of the body” cannot be defined in anything but a normative fashion — for instance, can birth control or abortion be said to be part of “the proper function of the body”? What about gastric bypass surgery?

Two days ago, the Convention on Cluster Munitions (the Oslo Agreement) achieved its 30th ratification — and therefore, by its own terms, enough support to becoming a binding international instrument on all ratifying nations. (Art. 17.) It will do so on Aug. 1, 2010.

Although 104 nations have signed the Oslo Agreement, it took Tuesday’s ratifications by Burkina Faso and Moldova to trigger the entry into force provisions. This brings the total number of ratifying nations to 30, and

include[s] states that led the “Oslo Process” effort to create the Convention (Norway, Austria, Holy See, Ireland, Mexico, and New Zealand), states where cluster munitions have been used (Albania, Croatia, Lao PDR, Sierra Leone, and Zambia), cluster munition stockpilers (Belgium, Denmark, France, Germany, Japan, Moldova, Montenegro, and Slovenia), as well as Spain, the first signatory country to complete destruction of its stockpile. Other ratifying states are: Burkina Faso, Burundi, Luxembourg, Macedonia, Malawi, Malta, Nicaragua, Niger, San Marino, and Uruguay.

Enough of those states have been involved in cluster bomb manufacture or stockpiling for the treaty to also embody some state practice in support of the norm. In fact, half of the fourteen countries that have actually used cluster bombs since the formation of the United Nations have now signed or ratified the treaty.

Of course, this still leaves the major manufactures of cluster bombs — the U.S., Russia, China, North Korea, Pakistan, India and Israel — who are not on board with the treaty.

Although the United States has not been a signatory, it has taken a few steps towards limiting the use of its own cluster munition resources. In early 2009, the Cluster Munitions Civilian Protection Act was introduced, but has since stalled in Congress. That legislation would have banned “most” uses of cluster munitions by the U.S. In March 2009, a separate bill was passed that banned all but a “tiny fraction” of cluster bomb exports.

The U.S. continues to maintain that cluster bombs are a legitimate military weapons, and that their absence would create a “capability gap” for military forces. Because the Oslo Agreement does not allow for any reservations — a practice the U.S. frequently resorts to when it does wish to enter a treaty of this nature — and because the U.S. has made clear it does not intend to enter into a complete abandonment of its cluster munitions programs, it is extremely unlikely that the U.S. will sign, let alone ratify, the treaty.